Mr James Campbell v All Tools Pakenham Pty Ltd T/A Total Tools Pakenham

[2018] FWC 1257

[2018] FWC 1257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Campbell
v
All Tools Pakenham Pty Ltd T/A Total Tools Pakenham
(U2016/14585)

COMMISSIONER CIRKOVIC MELBOURNE, 7 MARCH 2018

Application for an unfair dismissal remedy.

[1] On 6 December 2016 Mr James Campbell made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On 11 January 2017 Mr Campbell amended his application. Mr Campbell said he was notified of his dismissal on 16 September 2016 and stated that the dismissal took effect on 16 November 2016.

[2] On 5 February 2017 Mr Campbell filed submissions to the Fair Work Commission (“the Commission”). A jurisdiction hearing was held before me on 24 February 2017 which Mr Campbell, along with the Respondent, attended. The matter was adjourned until 9 March 2017 to allow a further witness to appear before the Commission.

[3] On 8 March 2017 Mr Campbell sent an e-mail to chambers requesting that the matter be adjourned for two weeks as he was in hospital. I granted Mr Campbell’s request for an adjournment.

[4] On 28 April 2017 my associate sent Mr Campbell an e-mail requesting an update as to whether he was well enough to proceed with his application. A request for Mr Campbell to provide a medical certificate was also made. No response was received to this e-mail from Mr Campbell.

[5] On 18 May 2017 my associate sent Mr Campbell another e-mail requesting that he provide my chambers with an update. No response was received to this e-mail from Mr Campbell.

[6] On 13 June 2017 my associate attempted to call Mr Campbell and left a voice mail requesting that he either call or e-mail chambers with an update as to whether he was well enough to proceed. No response was received to this e-mail from Mr Campbell.

[7] On 30 June 2017 my associate sent Mr Campbell another e-mail requesting that he provide chambers with an update. No response was received to this e-mail from Mr Campbell.

[8] On 3 November 2017 my associate sent Mr Campbell another e-mail seeking a response as to whether he wished to proceed with his application. No response was received to this e-mail from Mr Campbell.

[9] On 20 November 2017 my associate sent Mr Campbell another e-mail requesting that he provide a response to the previous e-mails “as soon as possible”. No response was received to this e-mail from Mr Campbell.

[10] On 23 January 2018 I listed the matter for a mention and/or directions hearing by telephone on 6 February 2018. On 6 February 2018 Mr Campbell did not answer his telephone upon being contacted by my associate for the telephone hearing. As Mr Campbell was not present at the telephone hearing, the hearing was adjourned.

[11] Later that day on 6 February 2018 Mr Campbell returned my associate’s calls and stated that he was not aware of the hearing because he had stopped paying his internet bills to save costs and subsequently no longer accessed his e-mails. Mr Campbell requested that all correspondence from the Commission be sent to his PO Box.

[12] Following the adjournment of the hearing on 6 February 2018, the Respondent filed a Form F1 and made an application pursuant so s.399A of the Act so that Mr Campbell’s application be dismissed.

[13] On 8 February 2018 my associate sent Mr Campbell a letter via e-mail and express post alerting him that the Respondent had made an application under s.399A to dismiss his application. The letter directed Mr Campbell to file submissions by close of business on 22 February 2018 providing reasons as to why the FWC should not dismiss his application.

[14] Mr Campbell did not file any submissions by close of business on 22 February 2018.

[15] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[16] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[17] As Mr Campbell did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Mr Campbell has failed to respond to the many attempts by the Commission to contact him. Apart from initially filing his application along with his submissions and appearing before the Commission at the jurisdiction hearing, Mr Campbell has shown no willingness to prosecute his case and has not provided a suitable explanation for his failure to comply with directions, respond to e-mail requests for update, his non-attendance at the mentions hearing and his failure to file submissions in response to the s.399A application.

[19] While I have sympathy for the Applicant’s financial circumstances, the circumstances offer no explanation for what appears to be a laissez-faire attitude to checking mail, contacting chambers and ultimately prosecuting his case.

[20] In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Mr Campbell’s application.

[21] An order giving effect to this decision will be issued today.

COMMISSIONER

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